The High Court has refused Michael Grange’s appeal against a decision that his freedom of information request to the Department of Foreign Affairs and Trade was vexatious. Ms Justice O’Regan found that he had not shown an error of law sufficient to overturn the Information Commissioner’s decision.
The appeal concerned a request dated 28 May 2016. The Department refused it under section 15(1)(g) of the Freedom of Information Act 2014, which permits refusal where a request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. The Information Commissioner upheld that refusal on 4 November 2016.
Grange argued that the Commissioner should have considered the request on its own, without regard to the history between him and the Department. He also challenged the process, including the failure to provide him with the Department’s submissions before the decision. The court was conducting a review on a point of law under section 24, not a fresh assessment of the request.
The judge held that the Commissioner was entitled to consider the request in its wider context. That context included Grange’s unsuccessful effort to join a roster of election observers, his dispute about payment of a grant for observing an overseas election, and earlier dealings with the Department. The judgment records that Grange’s June 2016 email said he intended to pursue the dispute through various avenues, potentially including litigation. The Commissioner concluded that the request was being used tactically to pursue that grievance and that the pattern of conduct amounted to abuse of the FOI process.
The court found that the Commissioner could take this context into account when assessing whether the request was vexatious. It also rejected Grange’s fair-procedure challenge over the Department’s submissions. The judgment noted that submissions were not evidence, that the Commissioner’s process allowed informal procedures, and that Grange had previously been told submissions would not generally be exchanged.
The judge addressed other complaints, including alleged factual errors concerning parliamentary questions, a training course and a meeting. She found no material error that justified setting the Commissioner’s decision aside. The court did not decide whether the underlying grievance about the roster or grant was justified; it reviewed the legality of the Commissioner’s decision.
The relief sought in Grange’s notice of motion was refused.